Citation Nr: 0726933
Decision Date: 08/29/07 Archive Date: 09/11/07
DOCKET NO. 04-11 933A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an increased disability rating for service-
connected residuals of a thoracic spine strain with evidence
of ligamentous calcification, currently evaluated as 40
percent disabling.
REPRESENTATION
Veteran represented by: Oregon Department of Veterans'
Affairs
WITNESSES AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
M. Donohue, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
from February 1972 to April 1976.
Service connection for a thoracic spine disability was
initially granted in a July 1980 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon. A 10 percent disability rating was
assigned.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of an September 2003 rating decision by the
RO in Seattle, Washington which continued the veteran's 10
percent disability rating. The Portland RO currently has
jurisdiction over the veteran's claim.
In March 2004, the Portland RO increased the veteran's
thoracic spine disability rating to 40 percent disabling.
The veteran and his representative have indicated continued
dissatisfaction with this rating in subsequent correspondence
to the RO. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when
a veteran is not granted the maximum benefit allowable under
the VA Schedule for Rating Disabilities, the pending appeal
as to that issue is not abrogated].
The veteran testified at a Travel Board hearing which was
chaired by the undersigned Veterans Law Judge at the Portland
RO in September 2006. A transcript of the hearing has been
associated with the veteran's VA claims folder.
FINDINGS OF FACT
1. The medical and other evidence of record indicates that
the veteran's service-connected thoracic spine disability is
manifested predominately by limitation of motion.
2. The evidence does not show that the veteran's service-
connected thoracic spine disability is so exceptional or
unusual that referral for extraschedular consideration by
designated authority is required.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 40
percent for the service-connected thoracic spine disability
are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.71a, Diagnostic Code 5291 (2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5237 (2006).
2. The criteria for referral for increased disability rating
for the thoracic spine disability on an extraschedular basis
are not met. 38 C.F.R. § 3.321(b)(1) (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks entitlement to an increased rating for his
thoracic spine disability.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision.
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3
(2006).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issue on appeal. The Board
observes that the veteran was informed of the evidentiary
requirements for an increased rating in a letter from the RO
dated June 25, 2003, including a request for "medical
evidence showing your condition has worsened."
Crucially, the RO informed the veteran of VA's duty to assist
him in the development of his claim in the above-referenced
June 2003 letter, whereby the veteran was advised of the
provisions relating to the VCAA. Specifically, the veteran
was advised that VA would assist him with obtaining "medical
records, employment records, or records from other Federal
agencies." With respect to private treatment records, the
VA included copies of VA Form 21-4142, Authorization and
Consent to Release Information, which the veteran could
complete to release private medical records to the VA.
The June 2003 letter further emphasized: "You must give us
enough information about these records so that we can request
them from the agency or person who has them. It's still your
responsibility to make sure we receive these records."
The Board notes that in a subsequent letter from the RO dated
March 20, 2006 specifically requested the veteran submit any
additional information or evidence that pertains to his claim
or inform the RO of such information or evidence. This
complies with the "give us everything you've got" provision
contained in 38 C.F.R. § 3.159(b) in that it informed the
veteran that he could submit or identify evidence other than
what was specifically requested by the RO.
Finally, there has been a significant recent Court decision
concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App.
473 (2006), the Court observed that a claim of entitlement to
service connection consists of five elements: (1) veteran
status; (2) existence of a disability; (3) a connection
between the veteran's service and the disability; (4) degree
of disability; and (5) effective date. Because a service
connection claim is comprised of five elements, the Court
further held that the notice requirements of section 5103(a)
apply generally to all five elements of that claim.
Therefore, upon receipt of an application for a service
connection claim, section 5103(a) and section 3.159(b)
require VA to review the information and the evidence
presented with the claim and to provide the claimant with
notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
The veteran was provided specific notice of the Dingess
decision the March 20, 2006 letter which detailed the
evidence considered in determining a disability rating,
including "nature and symptoms of the condition; severity
and duration of the symptoms; and impact of the condition and
symptoms on employment." The veteran was also advised in
the letter as to examples of evidence that would be pertinent
to a disability rating, such as on-going treatment records,
recent Social Security determinations and statements from
employers as to job performance and time lost due to service-
connected disabilities.
With respect to effective date, the March 2006 letter
instructed the veteran that two factors were relevant in
determining effective dates of increased rating claims: when
the claim was received; and when the evidence "shows a level
of disability that supports a certain rating under the rating
schedule or other applicable standards." The veteran was
also advised in the letter as to examples of evidence that
would be pertinent to an effective date determination, such
as information about continuous treatment or when treatment
began, service medical records the veteran may not have
submitted and reports of treatment while attending training
in the Guard or Reserve.
In short, the record indicates that the veteran received
appropriate notice pursuant to the VCAA.
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2006).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it. In particular, the VA has obtained the
veteran's private medical records, his VA outpatient
treatment records, his service medical records, and it has
provided medical examinations in July 2003 and February 2007.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2006). The veteran has been accorded the opportunity to
present evidence and argument in support of his claim.
He exercised the option of a personal hearing and was
afforded one in September 2006 as detailed in the
Introduction.
Accordingly, the Board will proceed to a decision.
Pertinent law and regulations
Disability ratings - in general
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. See 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.321(a), 4.1 (2006). Separate
diagnostic codes identify the various disabilities. See
38 C.F.R. Part 4.
Specific rating criteria
The veteran's claim was filed in April 2003. During the
pendency of this appeal, the applicable rating criteria for
the spine, found at 38 C.F.R. § 4.71a, were amended effective
September 26, 2003. See 68 Fed. Reg. 51, 454-51, 458 (Aug.
27, 2003). The veteran has been provided with the new
regulatory criteria in the March 2004 statement of the case
and submitted additional argument after receiving such
notice. Therefore, there is no prejudice to the veteran in
the Board adjudicating the claim. Cf. Bernard v. Brown, 4
Vet. App. 384 (1993).
Where a law or regulation changes after the claim has been
filed, but before the administrative or judicial process has
been concluded, the version most favorable to the veteran
applies unless Congress provided otherwise or permitted the
Secretary of VA to do otherwise and the Secretary did so. See
VAOGCPREC 7-2003. The Board will therefore evaluate the
veteran's service-connected spine disability under both the
former and the current schedular criteria, keeping in mind
that the revised criteria may not be applied to any time
period before the effective date of the change. See 38
U.S.C.A. § 5110(g) (West 1991); 38 C.F.R. § 3.114 (2002);
VAOPGCPREC 3-2000; Green v. Brown, 10 Vet. App. 111, 117
(1997).
(i.) The former schedular criteria
Former Diagnostic Code 5291[spine, limitation of motion of,
dorsal] provided the following levels of disability:
10% Severe;
10% Moderate;
0% Slight.
See 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002).
The Board observes that the words 'slight' and 'moderate' are
not defined in the VA Rating Schedule. Rather than applying
a mechanical formula, the Board must evaluate all of the
evidence to the end that its decisions are 'equitable and
just.' See 38 C.F.R. § 4.6 (2006).
It should be noted that 'thoracic spine' and 'dorsal spine'
are synonymous. See Reiber v. Brown, 7 Vet. App. 513, 515
(1995). Citing Webster's Medical Desk Dictionary 715 (1986),
the Court in Reiber explained that thoracic vertebrae are any
of the 12 vertebrae dorsal to the thoracic region and
characterized by articulation with the ribs.
(ii.) The current schedular criteria
Effective September 26, 2003, a General Rating Formula for
Diseases and Injuries of the Spine provides that with or
without symptoms such as pain, stiffness, or aching in the
area of the spine affected by residuals of injury or disease
the following ratings will apply. This formula encompasses
current Diagnostic Code 5237 [lumbosacral or cervical
strain].
A 100 percent rating is warranted for unfavorable ankylosis
of the entire spine.
A 50 percent rating is warranted for unfavorable ankylosis of
the entire thoracolumbar spine.
A 40 percent rating is warranted for unfavorable ankylosis of
the entire cervical spine; or, forward flexion of the
thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine.
A 20 percent rating is warranted for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, forward flexion of the cervical spine
greater than 15 degrees but not greater than 30 degrees; or,
the combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, the combined range of motion of
the cervical spine not greater than 170 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
Rating musculoskeletal disabilities
The evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluations is the ability of the
body as a whole to function under the ordinary conditions of
daily life, including employment. See 38 C.F.R.
§ 4.10 (2006). Disability of the musculoskeletal system is
primarily the inability to perform the normal working
movements of the body with normal excursion, strength, speed,
coordination and endurance. See 38 C.F.R. § 4.40 (2006).
Consideration is to be given to whether there is less
movement than normal, more movement than normal, weakened
movement, excess fatigability, incoordination, pain on
movement, swelling, deformity, atrophy of disuse, instability
of station, or interference with standing, sitting, or weight
bearing. See 38 C.F.R. § 4.45 (2006).
The intent of the schedule is to recognize painful motion
with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. See 38 C.F.R. § 4.59 (2006).
Analysis
The veteran seeks an increased disability rating for his
service-connected thoracic spine strain with evidence of
ligamentous calcification, which is currently rated
40 percent disabling. He currently complains of decreased
range of motion and pain.
Assignment of diagnostic code
The assignment of a particular Diagnostic Code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One
Diagnostic Code may be more appropriate than another based on
such factors as an individual's relevant medical history, the
current diagnosis, and demonstrated symptomatology. Any
change in Diagnostic Code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2 Vet.
App. 625, 629 (1992). In this case, the Board has considered
whether another rating code is "more appropriate" than the
one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411,
414 (1995).
The veteran's service-connected thoracic spine disability is
currently rated under former Diagnostic Code 5291 [Spine,
limitation of motion of, lumbar] and current 5237
[Lumbosacral strain].
(i.) The former schedular criteria
After a review of the evidence pertaining to the veteran's
service-connected thoracic spine disability, the Board
believes that rating the veteran under former Diagnostic Code
5291 [spine, limitation of motion of, dorsal] is appropriate,
primarily because it pertains to the predominate symptoms of
the veteran's back disability (thoracic limitation of
motion). See July 2003 and February 2007 VA examination
reports. There is no former diagnostic code which concerns
the thoracic spine aside from Diagnostic Code 5291.
The Board has considered rating the veteran under former
Diagnostic Code 5293 [intervertebral disc syndrome] which
would allow for a maximum disability rating of 60 percent.
However, there is no indication that intervertebral disc
syndrome or herniated nucleus pulposus has been diagnosed.
The service-connected disability, according to the medical
evidence of record, is in the nature of a strain. Moreover,
the medical evidence does not indicate the veteran has any
neurological symptoms associated with his back disability.
The February 2007 VA examination revealed that the veteran
did not suffer from numbness, tingling, radiating pain, loss
of sensation or strength. Former Diagnostic Code 5293 is
therefore not applicable.
Former Diagnostic Codes 5285 [vertebra, fracture of,
residuals] and 5286 [spine, complete bony fixation
(ankylosis) of] both allow for a disability rating in excess
of the veteran's currently assigned 40 percent. However, a
review of the medical evidence indicates that the veteran has
never fractured a vertebra or has ankylosis of the spine.
Consequently, those codes are not for application.
The veteran and his representative have not argued that
former Diagnostic Code 5291is inappropriate, nor have they
suggested that another diagnostic code would be more
appropriate.
Therefore, the Board believes most appropriate diagnostic
code for rating the veteran under the former schedular
criteria is Diagnostic Code 5291.
(ii.) The current schedular criteria
With respect to the current schedular criteria, all lumbar
spine disabilities, with the exception of intervertebral disc
syndrome, are rated using the same criteria. See 38 C.F.R.
§ 4.71a, Diagnostic Codes 5235-5242 (2006).
With respect to intervertebral disc syndrome [Diagnostic Code
5243], as has been discussed above there is no medical
evidence of intervertebral disc syndrome or neurological
symptomatology. In addition, the medical evidence reveals
that the veteran does not have any incapacitating episodes
based on his service-connected back disability. See the
February 2007 VA examination report. The veteran's service-
connected thoracic spine disability accordingly will be rated
using the General Rating Formula for Diseases and Injuries of
the Spine.
Schedular rating
(i.) The former schedular criteria
The veteran's thoracic spine disability is currently rated as
40 percent disabling, thereby exceeding the maximum 10
percent rating available under Diagnostic Code 5291.
(ii.) The current schedular criteria
Under the current schedular criteria, to warrant a 50 percent
disability rating under the General Rating Formula for
Diseases and Injuries of the Spine, the veteran must show
unfavorable ankylosis of the entire thoracolumbar spine.
Ankylosis is defined as the "immobility and consolidation of
a joint due to disease, injury or surgical procedure." See
Lewis v. Derwinski, 3 Vet. App. 259. As noted above, the
veteran has not been diagnosed with ankylosis during any VA
examination or outpatient treatment, nor has he alleged as
much.
Accordingly, the veteran's service-connected lumbar spine
disability does not warrant a 50 or 100 percent rating under
the General Rating Formula for Diseases and Injuries of the
spine.
DeLuca considerations
The Board has taken into consideration the provisions of 38
C.F.R. §§ 4.40 and 4.45. See DeLuca, v. Brown, 8 Vet. App.
202 (1995). However, in Johnston v. Brown, 10 Vet. App. 80,
85 (1997), the Court determined that if a claimant is already
receiving the maximum disability rating available based on
symptomatology that includes limitation of motion, it is not
necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are
applicable. In the instant case, the veteran is receiving
the maximum rating allowable under the current General Rating
Formula for Diseases and Injuries of the Spine, absent
ankylosis. In addition, the currently assigned 40 percent
exceeds the maximum 10 percent rating under former Diagnostic
Code 5291. Accordingly, the aforementioned provisions of
38 C.F.R. § 4.40 and § 4.45 are not for consideration in this
case.
Extraschedular rating consideration
The Board has considered the question of whether an
extraschedular rating may be appropriate for the veteran's
back disability. See Bagwell v. Brown, 9 Vet. App. 157
(1966).
Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board
cannot make a determination as to an extraschedular
evaluation in the first instance. See also VAOPGCPREC 6-96.
However, the Board can address the matter of referral of a
disability to appropriate VA officials for such
consideration.
Ordinarily, the VA Schedule for Rating Disabilities will
apply unless there are exceptional or unusual factors that
would render application of the schedule impractical. See
Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to
the regulation, an extraschedular disability rating is
warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards." 38 C.F.R. §
3.321(b)(1) (2006).
The Board has not identified an exceptional or unusual
disability picture with respect to the veteran's service-
connected back disability. The record does not show that the
veteran has required any recent hospitalization for his
condition and there does not appears to have been any
significant time lost from work. Although the Board
certainly has no reason to doubt the veteran's testimony that
he is limited in his activities due to his back disability,
there is no evidence that the veteran is occupationally
impaired beyond the level contemplated in the assigned
disability rating. See Van Hoose v. Brown, 4 Vet. App. 361,
363 (1993) [noting that the disability rating itself is a
recognition that industrial capabilities are impaired].
For these reasons, the Board has determined that referral of
the veteran's service-connected disabilities for
extraschedular consideration pursuant to 38 C.F.R.
§ 3.321(b)(1) is not warranted.
ORDER
Entitlement to an increased disability rating for service-
connected residuals of a thoracic spine strain with evidence
of ligamentous calcification is denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs